Hildebrand v. Chavez et al

Filing 6

ORDER FOR RESPONDENTS TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 12/13/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 12/13/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICHAEL McCOY HILDEBRAND,
Petitioner,

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vs.

ORDER FOR RESPONDENTS
TO SHOW CAUSE

F. X. CHAVEZ and EDMUND G.
BROWN, Jr.,

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For the Northern District of California

United States District Court

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No. C 10-1957 PJH (PR)

Respondents.
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/
This is a habeas case filed pro se by a state prisoner. The petition was filed on April

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29, 2010. In it petitioner said that he was convicted on December 8, 2006, abandoned his

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direct appeal in 2007, and had a state habeas petition denied on July 30, 2009. The court

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noted in its initial review order that depending on when the first state habeas petition was

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filed, the federal statute of limitations might have expired before he filed it. The court

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ordered petitioner to show cause why the petition should not be dismissed as untimely.

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Petitioner has responded.

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Petitioner does not contend that the state petition was filed in time to toll the running

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of the limitations period, but he does contend that he is entitled to equitable tolling. Rather

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than attempting to rule based on the sketchy information now available, respondents will be

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ordered to show cause why the petition should not be granted, which would encompass a

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motion to dismiss on statute of limitations grounds if they consider one justified.

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CONCLUSION
1. The clerk shall serve by regular mail a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney General of the

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State of California. The clerk also shall serve a copy of this order on petitioner.

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2. Respondent shall file with the court and serve on petitioner, within sixty days of

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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
the court and serving it on respondent within thirty days of his receipt of the answer.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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For the Northern District of California

United States District Court

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Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court

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and serve on respondent an opposition or statement of non-opposition within thirty days of

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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply

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within fifteen days of receipt of any opposition.

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4. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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must keep the court informed of any change of address and must comply with the court's

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.

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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.

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Dated: December 13, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.10\HILDEBRAND1957.OSC.wpd

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